Council could face legal challenge over its decision to withdraw SenCom support Service

Published on January 11, 2019 by TCI Team

Commentary:

After a flurry of judicial reviews last year over cuts to special educational needs (SEN), it appears councils are still unsure how to proceed safely when withdrawing services in this area. This article relates to a Welsh Council that has received a letter before claim, and suggests that no consultation or engagement took place before the decision was taken…Surely, 2018 gave us enough examples to provide adequate learning and thinking from the Courts? Perhaps not.

Article:

A LEGAL challenge made on behalf of a blind schoolboy has threatened to end council plans to pull out of a children’s special needs service.

Leading law firm Watkins and Gunn, who have offices in Newport, Cardiff and Pontypool, think Newport City council’s decision to leave the Gwent-wide Sensory and Communication Support Service could be illegal.

A partner at the firm confirmed a legal letter was sent to the council offices of Friday, January 4. The South Wales Argus understands the council are preparing a detailed response.

If successful, the legal challenge, brought on behalf of nine-year-old Newport boy Brogan Battersby, could lead to a judicial review, and ultimately stop the council leaving SenCom.

Hundreds of children in Newport rely on highly specialised SenCom support in mainstream and special needs schools.

The service, which is run out of Torfaen council but funded by all five Gwent local authorities, supports all children aged 0 to 19-years-old with hearing, sight or language impairments in Newport, Monmouthshire, Torfaen, Caerphilly County Borough and Blaenau Gwent.

In October last year, Newport City Council gave six months’ notice that they were pulling out of SenCom, saving themselves £250,000.

Despite concerns from parents, charities and politicians, the council say they will replace the service with an “equivalent” offering, tailored to suit the needs of around 380 children in Newport.

Michael Imperato, a partner at the firm specialising in education law, confirmed a letter was sent to the council on Friday, January 4, outlining why they think the decision could have been taken illegally.

He said he was “optimistic” about the case.

“In a nut shell, the decision in October seems to have been taken somewhat out of the blue,” explained Mr Imperato.

“It’s been a common complaint by parents, by AMs and by charities that nobody was given any notice of a decision.

“It’s our view that if you’re going to take away or substantially alter a service that’s being provided to disabled children there’s a legitimate expectation that they will have some kind of forewarning before that decision is made.

“It also seems odd that the decision was made without any consultation or engagement.

“The decision looks like it has been made before they’ve even worked out what’s going to be put in SenCom’s place.

“We only need one complainant at this point, and that is Brogan. We’ve secured emergency legal aid for him. Others who have been in touch may be used as witnesses or future complainants.”

The South Wales Argus understands that the council has acknowledged receipt of the legal letter, and are preparing a detailed response.

If Watkins and Gunn think the case is winnable, they will then issue high court judicial review proceedings.

“We are aware that the decision has to have some kind of resolution by April this year, so we will be asking the court to get the matter heard before then,” added Mr Imperato.

“In judicial review the courts are aware of the urgency of the issues. I would say from what I have seen so far I am optimistic about this case.”

As well as being completely blind, Brogan, from the Beechwood area of the city, suffers from autism, epilepsy and a joint instability syndrome, meaning his joints regularly dislocate.

He has relied on SenCom support since he was three-months-old.

Brogan’s grandmother and main care-giver, Dawn, previously told the South Wales Argus that Newport council’s decision could set him back years, and even cause him to self-harm.

Speaking about the potential legal challenge, Ms Battersby told the South Wales Argus she felt quite positive, and vowed to never stop fighting the decision.

“A part of me is still very angry about it all,” explained Ms Battersby.

“I’m glad there’s movement, but in my opinion it shouldn’t have come to this to start with.

“Newport are not giving any answers to myself or numerous other parents and charities who have contacted them.

“The first time we can speak to them about it is in February, which would have taken us beyond the three month threshold for judicial review.

“It’s frustrating beyond words that we have to take precious time out of Brogan’s life to address this situation that really should never have happened.

“I’m determined to fight this to the bitter end.”

When approached for comment, a spokesman for Newport City Council said the local authority were confident they had acted legally throughout the decision process.

The spokesman added: “We have consistently reassured clients that the new Newport provision will be equivalent to that currently provided by the regional service.”

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